The repository of one hard-boiled egg from the south suburbs of Milwaukee, Wisconsin (and the occassional guest-blogger). The ramblings within may or may not offend, shock and awe you, but they are what I (or my guest-bloggers) think.

Archive for the 'Lawgivers-In-Black' Category

April 1, 2012

It somehow seemed fitting that as it reached it’s “terrible twos,” Placebocare reached the Supreme Court. After three days of arguments, whether Placebocare, in whole or part, gets to see it’s “terrific threes” is now left to nine people who regularly wear black robes to the work place.

I’m not an attorney, nor do I play one on TV. However, it seems that the preponderance of opinion on both the Left and Right is that the Administration did a horrible job of making its case. Many, again on both sides, believe the individual mandate is in serious trouble. Beyond that, there is growing concern that whether the Justices believe the mandate to be severable or not may be moot. The whole of Placebocare could go down not over a severability argument but because the law is so complex and so intertwined on so many levels that the Justices may well feel that it is not within their ability to judge what stays or goes and instead give Congress a “do over” on the whole law.

Typically in a Supreme Court case, once the case is argued there may be a few days of public speculation as to the outcome if the case was unique or particularly important, like the Kelo decision. I don’t think that pattern will hold with Placebocare.

In a sign that the Left is both worried and is positioning for fall elections, we are seeing and will continue to see articles like this one from Slate.

Let’s skip past the “if you believe Placebocare is unconstitutional you must be a redneck from Kentucky” comment like:

The smart money before the argument was on an 8-1 upholding of Obamacare.

and head straight for what we will hear from now until the day the Supreme’s announce their decision…and if the Left loses, what we will hear as Obama’s campaign standard:

If it overturns Obamacare, the Supreme Court will have revealed its radical nature.

You see to the Left, the Supreme Court is only “Supreme” when it agrees with their agenda. When it doesn’t agree, it is there to be politicized like a group of nine “Joe the Plumbers.” President Obama showed us clearly how this works with his 2010 State of the Union Speech. During the speech, in reference to the Citizens United v. Federal Election Commission decision, President Obama openly criticized the Supremes. He claimed that they “reversed a century of law.” It was President Obama’s way of saying “they’re radical.”

Between now and the end of June when the Supreme Court is expected to release it’s decision, the MSM and other left media outlets will be attempting to taunt the Supreme Court to see things their way. Taunts like “radical,” “legitimacy” and “ideologues” will be included in numerous recounts of the arguments and the possible ramifications of the outcome. If the decision goes against the Administration, you can bank on Obama using these same taunts in an effort to galvanize his slipping support in an effort to make the Supreme Court the reason for his reelection. In fact, if, as I suspect, Sotomayer leaks the decision to the Administration, you can expect to see Obama cranking this rhetoric as a preemptive strike on what will be a harmful decision.

It’s going to be a long spring folks. Politics will not be leaving stage front and center for another several months, maybe a year. In the meantime, expect to hear a lot of taunting of the Supreme Court. Like the kids of our youth I can already hear the left yelling, “Meme, Meme, Meeeeeme!”

update 2 4/2 3:01 PM No I’m not clairvoyant I just understand how the Left “thinks.” Expect to see a lot more of this in the coming weeks. In fact, the more you see of it the better as it will be a confirmation that Placebocare will be struck down

March 17, 2012

In case you missed the screaming headline in today’s paint catcher, the Left’s attempt to nullify the April 2011 re-election of Justice David Prosser is proceeding apace with a “recommendation” from the Wisconsin Judicial Commission, specifcally special prosecutor Franklyn Gimbel, to refer the matter stemming from Justice Ann Walsh Bradley’s charge of Prosser to a three-judge panei for possible removal of Prosser.

Justices Annette Ziegler and Patience Roggensack were far more “diplomatic” in their reactions to this power grab than I am (it helps that, unlike the two justices I don’t have to work with Abrahamson), but Roggensack said she was “blindsided” by it.

March 31, 2011

That is the net effect of the latest pronouncement from Dane County Circuit Judge Judge Maryann Sumi, who has also declared herself superior to the Wisconsin Supreme Court, which back in 1943 declared that no court has jurisdiction over the publication of an act, even if that act was, arguably, passed in a manner contrary to the state constitution.

Whether striking down a legislative act—also known as voiding—is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof.

Whether a court has the authority to enjoin the secretary of state’s publication of an act before it becomes law.

It is a given that the members of the 3-person panel, Brian Blanchard, Paul Higginbotham and Paul Lundsten, are stalling until the remainder of the local units of government finish rushing to completion contracts that are unnecessarily benefitial to the unions. The only question is, in voting “present”, Blanchard, Higginbotham and Lundsten are simply afraid of the voters in Madison (the main area served by the 4th District) or are trying to stoke the anti-Prosser flames a bit higher by forcing the Supreme Court to deliver the smackdown.

Lawgiver-In-Black George Steeh, Michigan Eastern District judge appointed by Bill Clinton, ruled that any and every Congressional regulation of any economic decision that just might affect an aspect of interstate commerce that Congress decides to regulate is “Constitutional” under the Commerce Clause. Yes, you read that right – if Congress were so inclined, it can order you to buy a new Government Motors vehicle (and even tell you precisely which vehicle and which options) every three years.

July 6, 2010

The Daily News reports that Justice Anthony Kennedy, the most-powerful Lawgiver-In-Black as the Supreme Court’s swing vote, told friends and family he’s sticking around for at least another 3 years. Ever-so-conveniently, that places his potential retirement past the end of President Obama’s first term.

Ed notes there may well be a bit of vengenace on the part of Kennedy against Obama:

Obama certainly reveled in his prime-time, televised, cheap-shot attack at jurists who couldn’t fire back. Samuel Alito took fire from the media for having just mouthed a rebuttal. The only revenge any of them can take is to make sure that they stay in place until Obama leaves office. The “at least” part of the report almost certainly means that retirement at 80 may be just as possible as retirement at 76. After all, John Paul Stevens didn’t decide to retire until he was almost 90 years old.

June 16, 2010

Ace dug out the memory of wanna-be Assistant General for Civil Rights Lani Guiner when he found that Port Chester, New York was forced by a Lawgiver-In-Black to give up its at-large voting system for its six village trustees and adopt “cumulative voting” in order to assure Hispanic representation, and also keep the in-person polls open for five full days.

The difference between at-large voting systems and cumulative voting systems is, in an at-large system, one can only vote for each candidate once, casting votes up to the maximum number of offices being filled. Meanwhile, in a cumulative voting system, one can apportion votes up to the maximum number of offices being filled with no limit on the number of votes cast for a particular candidate.

The reason this “works” for the “aggrieved minority”, and indeed, worked for one Luis Marino, who The Journal News cheered as the first Latino elected in Port Chester, is a minority group can multiply their votes behind a single candidate, while the “high-minded majority” splits their votes among multiple candidates. The effect is enhanced if, like Port Chester, there is no primary to narrow the field to “the number of offices plus one”.

Bear in mind that, while what Jay Weber calls the Accomplice Media notes, correctly yet incompletely, that Latinos make up close to half Port Chester’s population, there is a small detail that most of them will miss, and I will give kudos to The Journal News for mentioning it – Latinos make up only roughly 20% of the voting-age citizens in the village. The fact that, up until yesterday, no Latino had been elected to the board is more a statistical quirk than anything else.

First, a bit of background. Yesterday, Mark Tapscott kicked over an anthill when he found that Nancy Pelosi and Louise Slaughter are hypocrites when it comes to the Constitutional requirement that a bill that is presented to the President be voted on by both Houses in identical form. Ed Morrissey, among others, noted that the group Pelosi and Slaughter sided with in 2005 lost their challenge that the House passed a slightly-different (specifically, a two-character difference) version of a bill than the Senate, with the appellate court relying on Marshall.

That led me to the actual Marshall decision, and I note that, while there is a dissent-in-part, that dissent does not extend to this portion of the opinion of the Court. Rather than excerpt it, I’ll give you the entire section that deals with the differences between the “enrolled” and “voted upon” versions of the bill in question, starting at 143 U.S. 662:

MR. JUSTICE HARLAN delivered the opinion of the Court.

Duties were assessed and collected, according to the rates established by what is known as the “Tariff Act of October 1, 1890,” on woolen dress goods, woolen wearing apparel, and silk embroideries, imported by Marshall Field & Co., on silk and cotton laces imported by Boyd, Sutton & Co., and on colored cotton cloths imported by Herman, Sternbach & Co. 26 Stat. 567, c. 1244, § 1.

The importers severally protested against the assessment upon the ground that the act was not a law of the United States. Upon appeal to the Board of General Appraisers under the Act of June 10, 1890, known as the “Customs Administrative Act,” the decision of the collector in each case was approved, c. 407, secs. 14, 15, pp. 131, 137. The judgment of the board having been affirmed by the circuit courts of the United States in the respective districts in which these matters arose, the cases have been brought here for review.
The appellants question the validity of the Act of October 1, 1890, upon three grounds, to be separately examined.

First. The seventh section of Article I of the Constitution of the United States provides:

“All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills. Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States; if the approve, he shall sign it, but if not he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of that house, it shall become a law. But in all such cases, the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house, respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.”

“Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States, and, before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.”
The Revised Statutes provide that

“Whenever a bill, order, resolution, or vote of the Senate and House of Representatives, having been approved by the President or not having been returned by him with his objections, becomes a law or takes effect, it shall forthwith be received by the Secretary of State from the President, and whenever a bill, order, resolution, or vote is returned by the President with his objections, and, on being reconsidered, is agreed to be passed, and is approved by two-thirds of both houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Secretary of State from the President of the Senate, or Speaker of the House of Representatives, in whichsoever house it shall last have been so approved, and he shall carefully preserve the originals.”

The original enrolled act in question, designated on its face “H.R. 9416,” was received at the Department of State October 1, 1890, and, when so received, was attested by the signatures of Thomas B. Reed, Speaker of the House of Representatives, and Levi P. Morton, Vice-President of the United States and President of the Senate, and had thereon these endorsements:

“Approved October 1, 1890 BENJ. HARRISON”

“I certify that this act originated in the House of Representatives.”

“EDW. MCPHERSON, Clerk”

It is made the duty of the Secretary of State to furnish to the congressional printer

“a correct copy of every act and joint resolution as soon as possible after its approval by the President or after it has become a law, in accordance with the Constitution, without such approval.”
That duty was performed by the Secretary of State with respect to the act in question, and the act appears in the volume of statutes published and distributed under the authority of the United States. Rev.Stat. §§ 210, 3803, 3805, 3807, 3808.

The contention of the appellants is that this enrolled act, in the custody of the Secretary of State and appearing upon its face, to have become a law in the mode prescribed by the Constitution, is to be deemed an absolute nullity in all its parts, because — such is the allegation — it is shown by the congressional records of proceedings, reports of committees of each house, reports of committees of conference, and other papers printed by authority of Congress, and having reference to House Bill 9416, that a section of the bill, as it finally passed, was not in the bill authenticated by the signatures of the presiding officers of the respective houses of Congress and approved by the President. The section alleged to have been omitted was as follows:

“SEC. 30. That on all original and unbroken factory packages of smoking and manufactured tobacco and snuff, held by manufacturers or dealers at the time the reduction herein provided for shall go into effect, upon which the tax has been paid, there shall be allowed a drawback or rebate of the full amount of the reduction, but the same shall not apply in any case where the claim has not been presented within sixty days following the date of reduction, and such rebate to manufacturers may be paid in stamps at the reduced rate, and no claim shall be allowed or drawback paid for a less amount than five dollars. It shall be the duty of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to adopt such rules and regulations, and to prescribe and furnish such blanks and forms, as may be necessary to carry this section into effect. For the payment of the rebates provided for in this section there is hereby appropriated any money in the Treasury not otherwise appropriated.”

The argument, in behalf of the appellants, is that a bill, signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress. In view of the express requirements of the Constitution, the correctness of this general principle cannot be doubted. There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, not in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress.

But this concession of the correctness of the general principle for which the appellants contend does not determine the precise question before the Court, for it remains to inquire as to the nature of the evidence upon which a court may act when the issue is made as to whether a bill, originating in the House of Representatives or the Senate, and asserted to have become a law, was or was not passed by Congress. This question is now presented for the first time in this Court. It has received, as its importance required that it should receive, the most deliberate consideration. We recognize, on one hand, the duty of this Court, from the performance of which it may not shrink, to give full effect to the provisions of the Constitution relating to the enactment of laws that are to operate wherever the authority and jurisdiction of the United States extend. On the other hand, we cannot be unmindful of the consequences that must result if this Court should feel obliged, in fidelity to the Constitution, to declare that an enrolled bill, on which depend public and private interests of vast magnitude, and which has been authenticated by the signatures of the presiding officers of the two houses of Congress, and by the approval of the President, and been deposited in the public archives as an act of Congress, was not in fact passed by the House of Representatives and the Senate, and therefore did not become a law.

The clause of the Constitution upon which the appellants rest their contention that the act in question was never passed by Congress is the one declaring that

“Each house shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment require secrecy, and the yeas and nays of the members of either house on any question shall at the desire of one-fifth of those present, be entered on the journal.”

Article I, Section 5. It was assumed in argument that the object of this clause was to make the journal the best, if not conclusive, evidence upon the issue as to whether a bill was in fact passed by the two houses of Congress. But the words used do not require such interpretation. On the contrary, as Mr. Justice Story has well said,

“the object of the whole clause is to insure publicity to the proceedings of the legislature and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism and integrity and wisdom obtain their due reward, and votes are ascertained, not by vague conjecture, but by positive facts. . . . So long as known and open responsibility is valuable as a check or an incentive among the representatives of a free people, so long a journal of their proceedings and their votes, published in the face of the world, will continue to enjoy public favor and be demanded by public opinion.”

2 Story on the Constitution §§ 840, 841.

In regard to certain matters, the Constitution expressly requires that they shall be entered on the journal. To what extent the validity of legislative action may be affected by the failure to have those matters entered on the journal we need not inquire. No such question is presented for determination. But it is clear that in respect to the particular mode in which, or with what fullness, shall be kept the proceedings of either house relating to matters not expressly required to be entered on the journals; whether bills, orders, resolutions, reports, and amendments shall be entered at large on the journal, or only referred to and designated by their titles or by numbers — these and like matters were left to the discretion of the respective houses of Congress. Nor does any clause of that instrument either expressly or by necessary implication prescribe the mode in which the fact of the original passage of a bill by the House of Representatives and the Senate shall be authenticated or preclude Congress from adopting any mode to that end which its wisdom suggests. Although the Constitution does not expressly require bills that have passed Congress to be attested by the signatures of the presiding officers of the two houses, usage, the orderly conduct of legislative proceedings, and the rules under which the two bodies have acted since the organization of the government require that mode of authentication.

The signing by the Speaker of the House of Representatives and by the President of the Senate, in open session, of an enrolled bill is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill thus attested receives his approval and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept as having passed Congress all bills authenticated in the manner stated, leaving the courts to determine, when the question properly arises, whether the act so authenticated is in conformity with the Constitution.

It is admitted that an enrolled act thus authenticated is sufficient evidence of itself — nothing to the contrary appearing upon its face — that it passed Congress. But the contention is that it cannot be regarded as a law of the United States if the journal of either house fails to show that it passed in the precise form in which it was signed by the presiding officers of the two houses and approved by the President. It is said that under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a coordinate branch of the government. The evils that may result from the recognition of the principle that an enrolled act in the custody of the Secretary of State, attested by the signatures of the presiding officers of the two houses of Congress and the approval of the President, is conclusive evidence that it was passed by Congress according to the forms of the Constitution would be far less than those that would certainly result from a rule making the validity of congressional enactments depend upon the manner in which the journals of the respective houses are kept by the subordinate officers charged with the duty of keeping them.

The views we have expressed are supported by numerous adjudications in this country, to some of which it is well to refer. In Pangborn v. Young, 32 N.J.Law 29, 37, the question arose as to the relative value as evidence of the passage of a bill of the journals of the respective houses of the legislature and the enrolled act, authenticated by the signatures of the speakers of the two houses and by the approval of the governor. The bill there in question, it was alleged, originated in the House and was amended in the Senate, but as presented to and approved by the governor did not contain all the amendments made in the Senate. Referring to the provision in the Constitution of New Jersey requiring each house of the legislature to keep a journal of its proceeding — which provision is in almost the same words as the above clause quoted from the federal Constitution — the court, speaking by Chief Justice Beasley, said that it was impossible for the mind not to incline to the opinion that the framers of the Constitution, in exacting the keeping of the journals, did not design to create records that were to be the ultimate and conclusive evidence of the conformity of legislative action to the constitutional provisions relating to the enactment of laws. In the nature of things, it was observed, these journals must have been constructed out of loose and hasty memoranda made in the pressure of business and amid the distractions of a numerous assembly. The Chief Justice said:

“Can anyone deny that if the laws of the state are to be tested by a comparison with these journals, so imperfect, so unauthenticated, that the stability of all written law will be shaken to its very foundation? Certainly no person can venture to say that many of our statutes, perhaps some of the oldest and most important, those which affect large classes of persons or on which great interests depend, will not be found defective, even in constitutional particulars, if judged by this criterion. . . . In addition to these considerations, in judging of consequences, we are to remember the danger, under the prevalence of such a doctrine, to be apprehended from the intentional corruption of evidences of this character. It is scarcely too much to say that the legal existence of almost every legisaltive act would be at the mercy of all persons having access to these journals, for it is obvious that any law can be invalidated by the interpolation of a few lines or the obliteration of one name and the substitution of another in its stead. I cannot consent to expose the state legislature to the hazards of such probable error or facile fraud. The doctrine contended for on the part of the evidence has no foundation, in my estimation, on any considerations of public policy.”

The conclusion was that, upon grounds of public policy as well as upon the ancient and well settled rules of law, a copy of a bill bearing the signatures of the presiding officers of the two houses of the legislature and the approval of the governor, and found in the custody of the Secretary of State, was conclusive proof of the enactment and contents of a statute, and could not be contradicted by the legislative journals or in any other mode. These principles were affirmed by the New Jersey Court of Errors and Appeals in Freeholders of Passaic v. Stevenson, 46 N.J.Law 173, 184, and in Standard Underground Co. v. Attorney General, 46 N.J.Eq. 270, 276.

“Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times, be liable to be put in issue and impeached by the journals, loose papers of the legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable. . . . The result of the authorities in England and in the other states clearly is that at common law, whenever a general statute is misrecited, or its existence denied, the question is to tried and determined by the court as a question of law — that is to say, the court is bound to take notice of it and inform itself the best way it can; that there is no plea by which its existence can be put in issue and tried as a question of fact; that if the enrollment of the statute is in existence, the enrollment itself is the record, which is conclusive as to what the statute is, and cannot be impeached, destroyed, or weakened by the journals of Parliament or any other less authentic or less satisfactory memorials, and that there has been no departure from the principles in the United States except in instances where a departure has been grounded on, or taken in pursuance of, some express constitutional or statutory provision requiring some relaxation of the rule in order that full effect might be given to such provisions, and in such instances the rule has been relaxed by judges with great caution and hesitation, and the departure has never been extended beyond an inspection of the journals of both branches of the legislature.”

The provisions of the California Constitution, in force when the above case was decided relating to the journals of legislative proceedings, were substantially like the clause upon that subject in the Constitution of the United States. The doctrines of the above case were reaffirmed in People v. Burt, 43 Cal. 560. But it should be observed that at a subsequent date, a new Constitution was adopted in California under which the journals have been examined to impeach an enrolled bill. County of San Mateo v Southern Pacific Railroad Co., 13 F.7d 2.

A case very much in point is Ex Parte Wren, 63 Miss. 512, 527, 532. The validity of a certain act was there questioned on the ground that although signed by the presiding officers of the two houses of the legislature and approved by the governor, it was not law because it appeared from the journals of those bodies, kept in pursuance of the constitution, that the original bill, having passed the house, was sent to the senate, which passed it with numerous amendments, in all of which the house concurred, but the bill as approved by the governor did not contain certain amendments which bore directly upon the issues in the case before the court. The court, in a vigorous opinion delivered by Mr. Justice Campbell, held that the enrolled act, signed by the president of the senate and the speaker of the house of representatives and the governor, is the sole exposition of its contents, and the conclusive evidence of its existence according to its purport, and that it is not allowable to look further to discover the history of the act or ascertain its provisions. After a careful analysis of the adjudged cases, the court said:

“Every other view subordinates the legislature and disregards that coequal position in our system of the three departments of government. If the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses of the legislature, there will be an amount of litigation, difficulty, and painful uncertainty appalling in its contemplation, and multiplying a hundred-fold the alleged uncertainty of the law. Every suit before every court where the validity of a statute may be called in question as affecting the right of a litigant will be in the nature of an appeal or writ of error or bill of review for errors apparent on the face of the legislative records, and the journals must be explored to determine if some contradiction does not exist between the journals and the bill signed by the presiding officers of the two houses. Where the law is to be declared by the court, it must inform itself as best it can what is the law. If it may go beyond the enrolled and signed bill, and try its validity by the record contained in the journals, it must perform this task as often as called on, and every court must do it. A justice of the peace must do it, for he has as much right, and is as much bound, to preserve the Constitution and declare and apply the law as any other court, and we will have the spectacle of examination of journals by justices of the peace, and statutes declared to be not law as the result of their journalistic inquiry, and the circuit and chancery courts will be constantly engaged in like manner, and this court, on appeal, have often to try the correctness of the determination of the court below as to the conclusion to be drawn from the legislative journals on the inquiry as to the validity of the statutes thus tested. . . . Let the courts accept as statutes, duly enacted, such bills as are delivered by the legislature as their acts, authenticated as such in the prescribed mode.”

In Weeks v. Smith, 81 Me. 538, 547, it was said:

“Legislative journals are made amid the confusion of a dispatch of business, and therefore much more likely to contain errors than the certificates of the presiding officers to be untrue. Moreover, public policy requires that the enrolled statures of our state, fair upon their faces, should not be put in question after the public have given faith to their validity. No man should be required to hunt through the journals of a legislature to determine whether a statute, properly certified by the speaker of the house and the president of the senate and approved by the governor, is a statute or not. The enrolled act, if a public law, and the original, if a private act, have always been held in England to be records of the highest order, and, if they carry no ‘death wounds’ in themselves, to be absolute verity, and of themselves conclusive.”

To the same general effect are Brodnax v. Commissioners, 64 N.C. 244, 248; Nevada v. Swift, 10 Nev. 176; Evans v. Browne, 30 Ind. 514; Edger v. Randolph County Comm’rs, 70 Ind. 331, 338; Pacific Railroad v. Governor, 23 Mo. 353, 362, et seq.; Lottery Co. v. Richoux, 23 La.Ann. 743. There are cases in other state courts which proceed upon opposite grounds from those we have indicated as proper. But it will be found upon examination that many of them rested upon constitutional or statutory provisions of a peculiar character, which, expressly or by necessary implication, required or authorized the court to go behind the enrolled act when the question was whether the act, as authenticated and deposited in the proper office, was duly passed by the legislature. This is particularly the case in reference to the decisions in Illinois. Spangler v. Jacoby, 14 Ill, 297; Turley v. County of Logan, 17 Ill. 151; Prescott v. Canal Trustees, 19 Ill. 324; Supervisors v. People, 25 Ill. 181; Ryan v. Lynch, 68 Ill. 160; People v. Baranes, 35 Ill. 121. In the last-named case, it was said:

“Were it not for the somewhat peculiar provision of our constitution, which requires that all bills, before they can become laws, shall be read three several times in each house and shall be passed by a vote of a majority of all the members-elect, a bill thus signed an approved would be conclusive of its validity and binding force as a law. . . . According to the theory of our legislation, when a bill has become a law, there must be record evidence of every material requirement, from its introduction until it becomes a law. And this evidence is found upon the journals of the two houses.”

But the court added:

“We are not, however, prepared to say that a different rule might not have subserved the public interest equally well, leaving the legislature and the executive to guard the public interest in this regard, or to become responsible for its neglect.”

The case of @ 73 U. S. 511, was relied on in argument as supporting the contention of the appellants. The question there was as to the time when an act of Congress took effect, the doubt upon that point arising from the fact that the month and day, but not the year, of the approval of the act by the President appeared upon the enrolled act in the custody of the Department of State. This omission, it was held, could be supplied in support of the act from the legislative journals. It was said by the Court:

“We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question, always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.”

There was no question in that case as to the existence or terms of a statute, and the point in judgment was that the time when an admitted statute took effect, not appearing from the enrolled act, could be shown by the legislative journals. It is scarcely necessary to say that that case does not meet the question here presented.

Nor do the cases of South Ottawa v. Perkins, 94 U. S. 260; Walnut v. Wade, 103 U. S. 683, and Post v. Supervisors, 105 U. S. 667, proceed upon any ground inconsistent with the views we have expressed. In each of those cases, it was held that the question whether a seeming act of the legislature became a law in accordance with the Constitution was a judicial one, to be decided by the courts and judges, and not a question of fact to be tried by a jury, and without considering the question on principle, this Court held, in deference to the decisions of the Supreme Court of Illinois interpreting the constitution of that state, that it was competent for the court, in determining the validity of an enrolled act, to consult the legislative journals.

Some reliance was also placed by appellants upon section 895 of the Revised Statutes, providing that
“Extracts from the journals of the Senate, or of the House of Representatives, and of the executive journal of the Senate when the injunction of secrecy is removed, certified by the Secretary of the Senate or by the Clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court.”

But referring now only to matters which the Constitution does not require to be entered on the journals, it is clear that this is not a statutory declaration that the journals are the highest evidence of the facts stated in them, or complete evidence of all that occurs in the progress of business in the respective houses, much less that the authentication of an enrolled bill by the official signatures of the presiding officers of the two houses and of the President, as an act which has passed Congress and been approved by the President, may be overcome by what the journal of either house shows or fails to show.

We are of opinion, for the reasons stated, that it is not competent for the appellants to show, from the journals of either house, from the reports of committees, or from other documents printed by authority of Congress, that the enrolled bill, designated “H.R. 9416,” as finally passed, contained a section that does not appear in the enrolled act in the custody of the State Department.

Allow me to translate that for you – as of right now, the ONLY court-acceptable evidence that an “enrolled bill” actually passed Congress, or was even introduced into either House of Congress, is the signatures of the Speaker of the House and the Vice President (or presumably the Senate President Pro Tempore) on said “enrolled bill”. That’s right – a troka of the Speaker, Vice President and President have had the power to unilaterally enact law regardless of the other 534 members of Congress and indeed the Constitution for the last 118 years.

October 26, 2009

Individual “Rights” come in two forms. There are the rights that are spelled out in the Constitution. A right to bear arms, a right to a fair trial and a right to free speech are just a few of the examples of these rights. These rights, while guaranteed by the Constitution, are time and again “rights” that we have to fight to retain. It seems hardly a month goes by where one or more of our Constitutionally guaranteed rights are assaulted in small and large ways by Congress, the Judiciary, any of a number of interest groups are not comfortable in a free society, or even, the President.

Along with the rights that are guaranteed by the Constitution, there are a whole separate set of “rights” that have been established, not by the Constitution, but by the government. This set of “rights” are no where to be found in the Constitution. This set of “rights” are not even “rights”, at least not if you believe a “right” that you have doesn’t require anyone else to give up something they have. Included in this set of “rights” are; the “right” to an abortion, a “Right” to government provided financial support and a “right” to an equal educational opportunity for every child.

It’s ironic that we have to fight to get the set of rights provided by the Constitution remembered and yet any number of people and groups are happy to increase the number of the unmerited “rights”.

Right now, Congress is debating the addition of another unmerited “right”. While there are numerous rationals for the desire to implement health care reform, the core essence of the Left’s argument is that health care is in fact a right. Can you find it in the Constitution? No. However, the Left is undaunted in this argument and believes “it’s the right thing to do.”

If you think health care as a right is offensive, get ready for the next “right” that is now germinating within the thinking of the Left; a right to housing!

In this video, Raquel Rolnik, a UN “special rapporteur on the right to adequate housing” (think “Special Investigator”), is coming the the US to make a determination about New York and six other cities, affordable housing.

If you have any questions about my concerns regarding housing becoming a focus of “rights”, let’s look at Ms. Rolnik’s own words:

“I am representing the right of adequate housing as a human right.”

In past times a US President would have taken insult in a UN inspector nosing around the US when the UN’s record is one of support for Socialists and Marxists. This time, Rolnik is likely to receive the Medal of Honor from President Obama.

“Well, the feeling is that we definitely need to have a discussion, open discussion and re-appraisal of housing policies. I think a lot has been done in this country. This country has a history of intervening in housing sector, of building public housing, or intervening in the homelessness sector on innovating programs like rent subsidizing and other schemes. But in a way I think that was stuck in some point now. And I think the way forward need to be discussed.”

Just what Obama needs, support from the UN to completely take over yet one more industry!

May 27, 2009

Between focusing on the government/UAW takeover of 2/3rds of the Not-So-Big Three, keeping an eye on what the Spendocrats who run the Joint Finance Committee are throwing on the funeral pyre known as the FY2010-FY2011 Wisconsin budget, and preparing for my annual spring walleye hunt, I haven’t exactly been keeping an eye on the nomination of Judge Sonia Sotomayor to replace retiring Justice David Souter. Fortunately, Karl Rove is better-able to handle multitasking. He wrote in tomorrow’s Wall Street Journal regarding the Sotomayor nomination, and what the Senate Republicans can and should do:

The Sotomayor nomination also provides Republicans with some advantages. They can stress their support for judges who strictly interpret the Constitution and apply the law as written. A majority of the public is with the GOP on opposing liberal activist judges. There is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses.

Mr. Obama understands the danger of heralding Judge Sotomayor as the liberal activist she is, so his spinners are intent on selling her as a moderate. The problem is that she described herself as liberal before becoming a judge, and fair-minded observers find her on the left of the federal bench….

Nonetheless, Republicans must treat her with far more care than Democrats treated John Roberts or Samuel Alito and avoid angry speeches like Sen. Ted Kennedy’s tirade against Robert Bork. The GOP must make measured arguments against her views and philosophy, using her own words and actions.

Indeed, those are wise words for the rest of us right-of-center, words that are echoed by Fox News’ Brit Hume (H/T – Mike)…
[youtube]http://www.youtube.com/watch?v=FDZa2QmezPE[/youtube]

Of course, I expect Shoebox (if he manages to come up for air long enough to comment on this) and the co-bloggers to make further comments about the nomination. Somehow I expect to see that she was confirmed by the time I get back from vacation next week Saturday.

May 11, 2009

The Chicago Tribune reports that, in response to a challenge of the attachment of a GPS tracking device to a vehicle with a warrant, the Wisconsin District 4 Court of Appeals (based in Madison) ruled that not only can that happen, but warrantless attachment of GPS tracking devices to vehicles owned by those not considered suspects while said vehicles are parked on private driveways can happen as well.

I guess it’s time to start regular sweeps of Blue Thunder for tracking devices as keeping it in a locked place is not exactly an option. I can see the 4th District or one of its sister liberal appellate courts throwing out the requirement that an officer be able to prove who is driving a car to issue a speeding ticket, and GPS is very handy in providing speed data as well as location data.

I think we can all agree that the constitution says you can’t discriminate based on race…I’m pretty sure there have been a couple of Supreme Court cases that support that! Seems pretty simple that if you can’t discriminate on race then you can’t have racial preferences. After all, what is a racial preference other than discrimination on the race(s) that are not being preferred?

“But, but,” you say, “discrimination is bad but preference is good! We want to do good things!”

Really? Preference is good? Would you like to see just how quickly preference becomes discrimination?

Let’s say that we want educational preferences for a racial group. Let’s say that we find that the racial group we want to help is determined to “learn differently” than other racial groups. If we agree on that, wouldn’t it make logical sense to set up separate schools with separate teachers for these students who learn differently?

You say that’s wrong, it’s discrimination? It’s not wrong, we were trying to do good things so it must be OK!

The Left hates Justice Clarence Thomas because he uses logic and an originalist reading of the Constitution to determine what passes Constitutional muster. Clarence Thomas doesn’t abide the creation of new rights simply because they “feel right.”

July 11, 2008

Here’s a story I was going to leave alone. But after hearing a talk radio show carry on about it, I decided to chime in. From the Chicago Tribune:

Laura Tennessen case leads Wisconsin to outlaw necrophilia

Now first, let me be very clear that I do not, nor have I ever, endorsed necrophilia. Although, when I saw a picture of the perps I can certainly see why they resorted to it as a dead woman would be the only woman they could get near.

As I said, I heard a bunch of carrying on at a local talk radio show. The gist of the issue for the announcer was that the two dissenting judges were complete idiots for thinking that having sex with a dead person was ok. The problem is, that’s not what the dissenting judges were saying.

The two dissenting judges argued that the law as written did not apply to necrophilia. if you read the statute, Wis. Stat. Ann. § 940.225. Sexual assault, you’ll note that throughout the statute it refers to “person” in a context that assumes the crimes occurred with a person who was alive at some point of the act. Not until the end of the statute do you see this:

(7) DEATH OF VICTIM. This section applies whether a victim is
dead or alive at the time of the sexual contact or sexual intercourse.

The dissenting judges argued that the statue was intended to allow prosecution of a crime where the victim died during the crime or it was impossible to determine when during the crime, the individual died.

The problem that I have with the ruling is two fold. First, the language of the bill is at best, ambiguous. In a 2002 ruling, the Wisconsin Supreme Court talked about ambigous language and how it should interpret law if it exists in a statute:

In contrast, if the language of the statute is ambiguous, the court must resort to judicial construction. Id. at ¶15 (citing Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247-48, 493 N.W.2d 68 (1992)). A statute is ambiguous if it is capable of being understood by a reasonable person in either of two senses. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). A statute is not rendered ambiguous, however, merely because two parties disagree as to its meaning. Forest County v. Goode, 219 Wis. 2d 654, 663, 579 N.W.2d 715 (1998). If the statute is ambiguous, we then look to extrinsic factors, including legislative history, and the statute’s scope, context and subject matter, to determine the intent of the legislature. Landis, 2001 WI 86, ¶15.

In fact, even in the current opinion, the Court recognizes there are times where they should look past the plain language of the bill:

While extrinsic sources are usually not consulted if the statutory language bears a plain meaning, we nevertheless may consult extrinsic sources “to confirm or verify a plainmeaning
interpretation

While they did look back at the Legislative notes on the original bill, they focused on what they wanted to see rather than what the “plan meaning” of the Legislative notes were.

Secondly, the same 2002 ruling dealt with what the definition of what a “person” was and the Supreme Court addressed that issue with detail in that decision.

The majority opinion in this case did not address what a “person” is i.e. is a “person” a live person? if not, did the Wisconsin Supreme Court just open the door for a fetus to be a “person?”

In the end, the majority opinion was derisive of those who didn’t see the “plain meaning” of the language:

A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person

Does that mean that the two dissenting judges are imbeciles?

If the statute was so clear that a “reasonably well-informed person would understand the statute,” why did two lower courts hold otherwise and why did the Wisconsin Legislature spend time on a bill to specifically make necrophilia a crime? Are they all idiots?

I end up agreeing with the dissenting opinion on how the majority reached its conclusion:

The majority reaches a desired result through an undesirable analysis. I acknowledge that this is heinous conduct and good public policy would indicate that this conduct should be criminalized.

In short, it appears that the majority knew what they wanted the outcome to be and interepreted the case to conform with that conclusion rather than interpret the law and turn it back to the legislature for clarification, if necessary.

OK, I’ll admit, I’m not laying awake at night worrying about the next necrophilia case in Wisconsin. However, this is a situation where Conservatives need to be consistent. misuse of a court’s authority, even if the end result is one that you agree with, is a lot like lying; if you get away with it the first time, on a small issue, it’s easier to do it the next time with a bigger issue and the time after that with an even larger issue. If left unchecked this could eventually lead to a court writing Constitutional provisions out of whole cloth!

June 17, 2008

Canada.com reports that the court-appointed lawyer of “suspected” Islamokazi Omar Khadr, the sole surviving member of a group of Taliban Islamokazis who initiated a firefight with American forces in July 2002, wants Khadr released because he wasn’t read his rights.

I support his release…from an aircraft flying at 35,000 feet sans parachute and oxygen tank.

January 31, 2008

Revisions/extensions part 2 (12:38 am 1/31/2008, H/T – Allahpundit) – Since Robert Novak has double-blind-sourced this (triple-or-more sourced assuming those two sources weren’t lying about not being John Fund’s source), this thing is back on the top after an initial posting at 1:53 pm 1/28/2008.

More recently, Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because “he wore his conservatism on his sleeve.” (John Fund’s column)

(Steve) Schmidt (of the McCain camp) was a major player in the Alito confirmation fight, and says this: “It’s absolutely false. Sen. McCain was instrumental is helping confirm Justice Alito. We relied on him a great deal during the confirmation process to reassure the American people that Alito was the kind of justice America needed. John McCain was a warrior to get Alito on the bench.” (McCain camp’s response per Rich Lowry)

…Second, is Alito really too conservative by McCain’s lights to be a SCOTUS nominee under a McCain presidency? McCain needs to answer this immediately. Different types of conservatives vote based on many things, but judges have to rank in the top five for nearly all of us. While most conservatives have soured on the Bush presidency either because of spending or immigration or this or that policy, most of us still consider Bush’s SCOTUS nominees (minus Miers) to be reason enough to consider his presidency, on balance, worth support and certainly better than the alternatives that were available in 2000 and 2004. If McCain won’t appoint nominees similar to Bush’s, no speech at CPAC will help him repair the rift with conservatives, and conservatives don’t have much reason to support him if he’s the GOP nominee.

If McCain truly does consider Alito to be too conservative, then on judges even Rudy Giuliani is to McCain’s right and would make a less problematic GOP nominee than McCain.

I do take issue with the assertion that Giuliani would be better than McCain on the issue of judges. While Giuliani has said that he would appoint “strict constructionists”, he also signaled that he would reject any potential nominee that does not believe in stare decisis, specifically with regard to abortion.

“Let me just look you in the eye,” McCain told me. “I’ve said a thousand times on this campaign trail, I’ve said as often as I can, that I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed. I look you in the eye and tell you I’ve said a thousand times that I wanted Alito and Roberts. I have told anybody who will listen. I flat-out tell you I will have people as close to Roberts and Alito [as possible], and I am proud of my record of working to get them confirmed, and people who worked to get them confirmed will tell you how hard I worked.”

“I don’t get it,” McCain continued. “I have a clear record of that. All I can tell you is my record is clear: I’ve supported these guys. I went to the floor of the Senate and spoke in favor of them. It’s in the record, saying, ‘You’ve got to confirm these people.'”

I asked whether McCain had ever drawn any distinction between Roberts and Alito. “No, no, of course not,” McCain said.

I asked about the “wore his conservatism on his sleeve” line. “I’m proud of people who wear their conservatism on their sleeves, because they have to have a clear record of strict adherence to the Constitution,” McCain told me. “Remember, in all my remarks, I’ve said, look, we’re not going to take somebody’s word for it. You have to have a clear record of adherence to the Constitution, a strict interpretation of the Constitution. I have said that time after time after time.”

On this issue of the quote/non-quote, the ball is back in Fund’s (and Lopez’s) court. McCain went on to defend the Gang of 14, and gave a piss-poor defense of that. It really is an issue for another post, but it reinforces the basic objections I have with McCain regarding conservative judges.

January 3, 2008

Lest all the focus on the national get me termed “not a Wisconsin blog”, I really should turn the magnifying glass on the State Bar of Wisconsin’s attempt to monopolize all judicial races through the creation of the mis-named Wisconsin Judicial Campaign Integrity Committee. First, there’s the fact that it’s of the lawyers, by the lawyers, and for the lawyers. The funny thing is, the state Constitution doesn’t say anything about the lawyers controlling the process of electing judges.

Then there’s the makeup of that Star Chamber. Club for Growth Wisconsin went through the donation and volunteer records of the 8 members (non-voting chair and 7 voting members) and found some interesting things:

– 3 of the 8 have ties either personally or through spouses to Louis Butler’s campaign.
– 5 of 8 had ties to Linda Clifford’s failed campaign last year.
– 0 of 8 have ties to Mike Gableman’s campaign
– This Star Chamber meets in secret and speaks only through its chair.

In short, I’m not holding my breath waiting for them to denounce Loophole Louie for speaking about the very same cases at Marquette University that they denounced Gableman for not denouncing some of his supporters because they spoke about those cases.

On a related note, please take a look at the right sidebar, and support Judge Michael Gableman for Supreme Court.

September 14, 2007

Revisions/extensions (10:58 pm 9/14/2007) – For those of you who can’t get the WMV embed to play, here’s the YouTube version. I do not as a rule embed YouTube videos as I can’t get the sound to work with either Internet Explorer or Firefox.

If you haven’t heard by now, Sheboygan County Circuit Judge Timothy M. Van Akkeren overturned a guilty verdict on a child enticement charge rendered by a jury against a slimeball serial sex offender by the name of Mitchell D. Pask. The Journal Sentinel has a quick, yet exhaustive, history on Pask, including his past and present history with Van Akkeren (which includes the charge he is still in jail for at the moment, indecent touching of a woman at a Sheboygan store), and Patrick over at Badger Blogger has a good starter’s list of other cases that Van Akkeren took the perp’s side, but let’s focus on this one.

In Van Akkeren’s instructions to the jury, he defined “secluded area”, a necessary condition for child enticement, as “a place screened or hidden from view or remote from others.” With that in mind, I took a little trip to Workers’ Water Street Park…

I seem to have found three spots that would meet the above definition of “secluded area”, one right at the picnic shelter itself, and two within easy walking distance. Then again, considering the Lawgiver-In-Black loves to let perps walk, I don’t suppose he thought of that.

I hope the fine folks in Sheboygan County act on this about the end of April, 2008, when Van Akkeren becomes eligible for recall.

Just to refresh your memory, here is Section 13 of Article XIII of the Wisconsin constitution:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

The California Supreme Court is currently considering a consolidated set of cases where the city of San Francisco and assorted nuts want to force California to recognize gay “marriages”. Before I get to the truly-mind-blowing part of the post, here’s a short history cribbed from VoteYesMarriage.com, an outfit seeking to enshrine marriage into California’s constitution:

– In 2000, voters approved Proposition 22, which became Family Code section 308.5, which read in entirety, “Only marriage between a man and a woman is valid or recognized in California.” Do note that, other than a grammatical anomaly and the substitution of “this state” for “California”, that is The First Sentence. Also, do note that the Family Code is part of California’s statutes, not its constitution.

– Between 2003 and 2005, the California Legislature systematically extended every right traditionally reserved for marriage to same-sex couples under the banner “domestic partnerships”, including forcing private entites who either have government contracts or provide insurance to provide full married benefits to same-sex couples.

– In 2004, San Francisco issued same-sex “marriage certificates” in violation of state law. While California’s Supreme Court voided it, it invited a challenge to Family Code 308.5 on “constitutional” grounds, which was promptly issued.

– In 2005, the California courts held those extensions “constitutional” by declaring that Prop 22/Family Code 308.5 only protected the name “marriage” and not any rights associated it, and then extended the force-feeding of same-sex benefits to all entities that provide public accomodations.

– In 2006, an appellate court ruled that Family Code 308.5 did prohibit same-sex “marriage”. That case is part of a consolidated set of marriage cases currently before the California Supreme Court.

Even before we get to the bombshell, we have “(a) legal status identical or substantially similar to that of marriage” created in California. Now, on to the bombshell.

On June 20, the California Supreme Court asked the interested parties in the consolidated marriage cases referenced above to answer four questions:

What differences in legal rights or benefits and legal obligations or duties exist under current California law affecting those couples who are registered domestic partners as compared to those couples who are legally married spouses? Please list all of the current differences of which you are aware.

What, if any, are the minimum, constitutionally-guaranteed substantive attributes or rights that are embodied within the fundamental constitutional “right
to marry” that is referred to in cases such as Perez v. Sharp (1948) 32 Cal.2d 711, 713-714? In other words, what set of substantive rights and/or obligations, if any, does a married couple possess that, because of their constitutionally protected status under the state Constitution, may not (in the absence of a compelling interest) be eliminated or abrogated by the Legislature, or by the people through the initiative process, without amending the California Constitution?

Do the terms “marriage” or “marry” themselves have constitutional significance under the California Constitution? Could the Legislature, consistent with the California Constitution, change the name of the legal relationship of “marriage” to some other name, assuming the legislation preserved all of the rights and obligations that are now associated with marriage?

Should Family Code section 308.5 – which provides that “[o]nly marriage between a man and a woman is valid or recognized in California” – be interpreted to prohibit only the recognition in California of same-sex marriages that are entered into in another state or country or does the provision also apply to and prohibit same-sex marriages entered into within California? Under the Full Faith and Credit Clause and the Privileges and Immunities Clause of the federal Constitution (U.S. Const., art. IV, ?? 1, 2, cl.1), could California recognize same-sex marriages that are entered into within California but deny such recognition to same-sex marriages that are entered into in another state? Do these federal constitutional provisions affect how Family Code section 308.5 should be interpreted?

Answer #1 summary (identical in both briefs) – There Are No Differences Between the Legal Rights and Benefits or the Legal Obligations and Duties Provided to Married Couples and Those Provided to Registered Domestic Partners Under California Law. Mostly noted above, though Brown’s brief took the added step of noting that even if “marriage” were granted to same-sex couples, it would not be recognized under federal law or by other states.

To that, I say, “Only until the Ninth Circus gets a hold of it.”

Answer #2 summary (Brown’s brief) – Although a Compelling Justification Would Be Needed Before the State Could Forbid a Man and a Woman from Entering into the Essential Relationship We Know as Marriage, Married Couples Do Not Possess Any Substantive Right Or Obligation Under Californa Law That Could Not Be Eliminated by Legislative Action Supported by a Rational Basis. (Schwarzenegger’s brief summary begins after the comma) Of particular note is the last sentence of both briefs (Brown’s brief quoted; Schwarzenegger’s brief essentially identical) – “But the State submits that, except for this essential ability to choose and declare one’s life partner in a reciprocal and binding contractual committment of mutual support, any of the statutory rights and obligations that are afforded exclusively to married couples in California could be aborgated or eliminated by the Legislature or the electorate for any rational legislative purpose.”

In short, the only guaranteed right of marriage in California is to choose one’s “life partner” (the phrase is used in both briefs). Before I get to the item that makes even this moot in the eyes of the executive branch of California’s government, I will note that Schwarzenegger urges in his answer to the fourth question that Family Code section 308.5 be interpreted to mean that same-sex “marriages” not be recognized regardless of where they were entered into.

Answer #3 summary (identical in both briefs) – No Constitutional Provision Would Prohibit Changing the Name of the Marriage Relationship to Some Other Name. And thus “marriage” and Proposition 22/Family Code section 308.5 die. I will note that Schwarzenegger’s brief notes that the reference to “marriage” in Prop 22 might mean that any change in the name could require a vote of the people.

In short, without The Second Sentence, and without the protection of being part of Wisconsin’s constitution, The First Sentence would have been utterly meaningless, as it would neither have defended the institution of marriage nor the name of marriage itself.

April 20, 2007

I’m so glad they waited until I got back to issue this drivel so I could consider this without being rushed. I’m sure Rick Esenberg will apply a legal mind to this one, and I’ll wager that Jeff Wagner will jump in as well. The short version of the opinion – We Lawgivers-In-Black know better than you peon politicians and civil servants how to run a bidding contest, and if you corrupt politicians want to hand out favors for bribes, use minions and don’t tell them precisely why (though you can go as far as saying that it’s “political”).

That rousing cheer you hear is from corrupt politicians and criminals from Madison to Chicago and all points in between who have been given a “Stay out of jail free while buying campaign contributions and influence” card by LIBs Easterbrook, Bauer and Wood.

April 11, 2007

That is how long it’s been since the 3-person panel of Lawgivers-In-Black on the 7th Circuit Court of Appeals released Georgia Thompson from Club Fed, and there is still no opinion from them to back up their order. Inquiring minds from Madison to Chicago, both in politics and organized crime (or are they really one and the same?), want to know whether there is something specific about this case that caused a crash-stop reversal of Thompson’s conviction that they can exploit or whether the new standard is that, as long as the fixer remains clammed up, no conviction in the Great Lakes will remain upright.

October 27, 2006

Today’s Wall Street Journal (online version free today, October 27, 2006, only; I’m taking this from the print version) has an excellent editorial on New Jersey’s Supreme Court ruling that every benefit of marriage be extended to homosexual couples. Let’s take a look at the first paragraph:

This week’s New Jersey Supreme Court’s judicial diktat on same-sex-somethings (name to be determined later) is a remarkable arrogation of power by the judiciary. The court’s belief that it is empowered to embark on social experimentation in the field of marriage is embodied in the words — “We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples . . .” (our emphasis).

Note the phrase emphasized by the WSJ, “We have decided”. What, exactly, did the Lawgivers-In-Black decide? It decided that New Jersey’s legislature didn’t go nearly far enough in 2004 when it passed a law recognizing “domestic partnerships”. Indeed, it used the existance of that law to justify ordering the legislature to act as a further “great engine of social change”.

What else did the Lawgivers-In-Black decide? It decided that “or status as same-sex partners” be added to the interpretation of Article I, Paragraph 5 of the New Jersey Constitution, which reads, “No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.” Do note that they did NOT find a “fundamental right” to homosex “marriage” (though 3 of them did try to find just such a “right” in the “unenumerated rights” paragraph). Funny thing is, the phrases “same-sex” and “sexual orientation” (or similar language) do not appear anywhere in the New Jersey Constitution (or the United States Constitution for that matter). The other funny thing is that nowhere in that Constitution is the judiciary given a role in rewritting the Constitution.

If the Defense of Marriage Amendment fails on November 7, this ruling, or one demanding an outright mandate of “homosex marriage”, on an already-pending lawsuit to grant homosex couples “marriage” rights is in Wisconsin’s immediate future. Vote “YES” on the Defense of Marriage Amendment on November 7 (or earlier if you are voting absentee).